Opinion
104746/05.
Decided July 30, 2007.
Friedman James LLP, By: Andrew V. Buchsbaum, Esq., New York, New York, For Plaintiff.
Badiak Will, LLP, By: Alfred J. Will (AW-2485), Mineola, New York, For Defendants.
In this workplace injury action by a dock builder injured while he was working on a float stage underneath a pier on October 24, 2004, defendants Chelsea Piers, L.P. and Chelsea Piers Management Inc. move, pursuant to CPLR 3212, for summary judgment dismissing plaintiff Patrick Keane's common-law negligence and Labor Law §§ 200, 240 (1) and 241 (6) claims against them.
BACKGROUND
Plaintiff testified that he was employed as a dock builder by J.T. Cleary (Cleary) at the time of his alleged accident. In 2003, Cleary won a five-year contract with defendant Chelsea Piers Management Inc. to perform pier demolition and construction operations at the Chelsea Piers complex (Chelsea Piers) located on the west side of Manhattan. The Hudson River Park Trust leased Chelsea Piers to defendant Chelsea Piers, L.P., including Pier 60, where plaintiff's accident took place.
James T. Cleary, president of Cleary, testified that Cleary's maintenance project for Chelsea Piers primarily involved "pile posting," which consists of demolishing and replacing deteriorated portions of the support piling that supports the pier structure and replacing them (Plaintiff's Opp. Affirm., Ex 4 [Cleary Deposition], at 8-9).
Plaintiff testified that, in order to reach the overhead pier supports underneath the pier, plaintiff was required to paddle on a float stage or swim in the Hudson River underneath the pier. A float stage is comprised of four to five 12-inch by 12-inch, 24-foot long timbers bolted together. In order to fit underneath the pier, workers relied on the lowering of the tide. The clearance from the water level to the pier's underside could be anywhere from three feet to almost 15 feet, depending on the tide.
Plaintiff stated that, on the date of his accident, he loaded all of his hand tools on a float stage and paddled under Chelsea Piers to the area of the pier where he was to perform the pier demolition. In order to perform this work, plaintiff utilized such tools as chainsaws, sledgehammers, crowbars, impact guns and drills. The protective gear that plaintiff had with him at the time of his accident included a hard hat with a light, gloves, Timberland or Red Wings footwear, earplugs and chaps.
Plaintiff explained that, at the time of his alleged accident, he was standing on the float stage underneath the pier and using a hand-held gas chainsaw to remove a deteriorated "12 by 12," 24 foot long, 12 inch by 12 inch wooden beam. The beam supported the pier and was located about three to four feet above his head. Plaintiff also testified that it was very dark underneath the pier, so little camping lanterns and hard hats with lights had to be used while working.
At the time of his accident, plaintiff had cut through one end of the beam with his chainsaw and was in the process of cutting through the other side, when water from a wave picked up his float, while also causing the unsecured timber that plaintiff had been cutting through to dislodge and strike plaintiff's shoulder, knocking him down on the float stage. Specifically, plaintiff stated that a "wave came up and picked up the float, and I let go of the thing" and "I got smashed in the shoulder by a [12] by 12" (Plaintiff's Opp. Affirm., Ex 2 [Keane Deposition], at 41-42). Plaintiff further noted that when the wave came up, he then dropped the chainsaw into the water. In addition, plaintiff stated that the beam that he had been working on, and which struck him on the shoulder, must have also fallen into the water.
Immediately thereafter, another wave raised and carried plaintiff's float stage up, crushing plaintiff against the bottom of the pier and "compressing" plaintiff's right leg between the float stage and the pier ( id. at 46). Plaintiff then fell into the water. Plaintiff stated that, at that point, "[t]he waves kept coming in and bashing up and down, and the float kept smashing me on the side of the head and ribs," causing him to get cut up all over the back of his head ( id. at 46-47). Plaintiff testified that he did not have any indication that the waves were about to hit him before they did, nor did he hear any large vessels go by prior to his alleged accident.
Plaintiff was then pulled from the water by emergency medical technicians and taken to the hospital. The ambulance call report indicates that plaintiff "was a worker on the pier. He fell off and was pinned between [the] pier and [the] floating stage" (Plaintiff's Opp. Affirm., Ex 8 [Ambulance Call Report]). An accident report prepared by defendants indicates that plaintiff "was working on Pier 60 — on the underside of the pier repairing wooden pilings," when a water surge caused plaintiff to be "crushed between the wooden work float and the underside of the pier" (Plaintiff's Opp. Affirm., Ex 9 [Chelsea Piers Occurrence Report]).
Plaintiff also noted that a co-worker, Stacy Todd, was setting up next to him on his own work float at the time of his alleged accident. However, plaintiff testified that, although other workers were present at the time of his alleged accident, no one had told him that they had witnessed his accident.
Todd testified that plaintiff's accident occurred as plaintiff was paddling to the work site "under the pier laying on the float stage on his belly" (Plaintiff's Opp. Affirm, Ex 3 [Todd Deposition], at 27-28). Todd noted that plaintiff's float stage was not tied to anything. Todd also stated that, as plaintiff proceeded to go under the pier, "a swell out of nowhere lifted his float stage from the bottom up" and "pinched him between the float stage and the underside of the pier" ( id.). Todd further explained that plaintiff hit a 12 by 12 inch piece of wood called a "whaler" at the time that the wave pushed his float stage upwards ( id. at 28). However, Todd was not sure of the exact time of plaintiff's alleged accident or the precise pier involved.
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case'" ( Santiago v Filstein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" ( Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]; DeRosa v City of New York, 30 AD3d 323, 325 [1st Dept 2006]; see also Zuckerman v City of New York, 49 NY2d 557, 562). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied ( Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231; Grossman v Amalgamated Hous. Corp., Inc., 298 AD2d 224, 226 [1st Dept 2002]).
Initially, it should be noted that, although defendants argue that the affidavit of plaintiff's expert, professional engineer Stuart K. Sokoloff, was speculative and should not be relied upon by the Court, because Sokoloff did not personally visit the accident site, it is well-established that an expert need not visit the accident scene and may rely upon his review of other evidence regarding the accident scene ( Cuevas v City of New York, 32 AD3d 372, 374 [1st Dept 2006] [while expert did not visit the accident scene, his affidavit was not speculative because it was based upon a review of the documentary and photographic evidence that plaintiff identified as accurate]; Ealey v City of New York, 16 AD3d 543, 543-544 [2nd Dept 2005]; Tate v Freeport Union School Dist., 7 AD3d 695, 695 [2nd Dept 2004] [expert's affidavit based on a review of pictures and deposition testimony was sufficient to raise a triable issue of fact]).
Here, the Sokoloff affidavit was not speculative in that the affiant reviewed various deposition transcripts, plaintiff's verified bill of particulars, agreements, bid packages, drawings, letters, daily reports and occurrence reports.
In addition, although plaintiff asserts that non-party witness Todd's deposition transcript was not signed, and therefore should be ignored by this Court, in fact, the deposition was signed ( see Defendants' Reply Memo, Ex 1 [Todd Deposition], at 46).
I.
Labor Law § 240 (1), popularly known as the Scaffold Law ( see Ryan v Morse Diesel, Inc., 98 AD2d 615, 615 [1st Dept 1983]) provides, in relevant part:
"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
Labor Law § 240 (1) expresses a clear legislative intent to provide exceptional protection for workers against special hazards which arise on work sites which are either elevated or positioned below the level where materials or loads are hoisted or secured ( see Rocovich v Consolidated Edison Co., 78 NY2d 509, 515).
Labor Law § 240 (1) imposes absolute liability upon an owner or general contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure ( Zimmer v Chemung County Performing Arts, 65 NY2d 513, 523; Correia v Professional Data Mgt., 259 AD2d 60, 63 [1st Dept 1999]). The duty imposed by Labor Law § 240 (1) is nondelegable and an owner or contractor who breaches that duty may be held liable in damages irrespective of whether they actually supervised or controlled the work ( Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500).
In order to prevail on a section 240 (1) claim, the plaintiff must show that the statute was violated and that this violation was a proximate cause of the plaintiff's injuries ( Felker v Corning, Inc., 90 NY2d 219, 224-225 [worker injured by fall from elevated work site must generally prove that the absence of safety device was the proximate cause of his or her injuries to prevail on scaffolding law claim]).
A. PLAINTIFF'S SHOULDER INJURIES DUE TO THE FALLING BEAM
In his affidavit of March 16, 2007, plaintiff's expert, Sokoloff, maintained that defendants violated Labor Law § 240 (1), in that no safety device, such as a hangar, sling, brace, rope or temporary support beam, providing proper temporary vertical support for the deteriorated heavy timber that plaintiff was working on, was provided to prevent the partially cut and deteriorated section of the beam from falling. In addition, Sokoloff stated that the failure to utilize such a device was a proximate cause of plaintiff's injuries to his shoulder.
Defendants argue that plaintiff has not successfully proved a violation of Labor Law § 240 (1), because the beam that plaintiff was working on and which fell on him was not in the process of being hoisted or secured when it fell, citing among other cases, ( Narducci v Manhasset Bay Assocs., 96 NY2d 259, 268).
However, as plaintiff correctly contends, a falling object need not be in the process of being hoisted or secured in order for the accident to be covered under Labor Law § 240 (1) ( see Outar v City of New York, 286 AD2d 671, 673 [2nd Dept 2001], affd 5 NY3d 731 [Labor Law § 240 (1) applicable where plaintiff was struck by an unsecured dolly stored on top of a bench wall because "the dolly was an object that required securing for the purposes of the undertaking"]; Bush v Gregory/Madison Ave., LLC, 308 AD2d 360, 361 [1st Dept 2003] [issue of fact as to whether a security device would have been necessary to shield worker from falling iron angle that was inadequately secured]; Orner v Port Auth. of NY NJ, 293 AD2d 517, 518 [2nd Dept 2002]).
The case of Boyle v 42nd St. Dev. Project ( 38 AD3d 404, 405 [1st Dept 2007]) has further explained the law in this area. Citing Outar, the court held that plaintiff's accident clearly fell within the purview of the statute inasmuch as plaintiff was struck by a falling object that had been inadequately secured. In that case, threaded rods, which were not in the process of being hoisted or secured, fell from a height and injured plaintiff. The court noted that "the standard way of completing the job was to leave the nuts untightened until the placement of the stringers, threads and risers; at which point the nuts would be tightened, and thus the threaded rod would be firmly secured" ( id. at 408).
The court further explained that "if the nuts were not finally tightened, then the rods which the nuts were securing were not completely secured' within the meaning of section 240 (1). Pursuant to the provisions of section 240 (1) they should have been completely secured' or some safety device should have been used in the meantime to prevent the special hazard' of a gravity-related accident such as being struck by a falling object that was improperly hoisted or secured [internal citations omitted]'" ( id.; Bornschein v Shuman, 7 AD3d 476, 478 [2nd Dept 2004] [plaintiff's accident fell within the purview of Labor Law where an unsecured beam fell and struck him from a height and "(n)o equipment was used to secure the beam that injured the plaintiff, despite the fact that the beam was not bolted to the . . . walls"]).
The First Department in Boyle rejected the defendant's argument that the holding in Narducci stands for the proposition that an object must fall at the precise moment of being secured during the work process in order for the statute to apply, requiring dismissal of the plaintiff's Labor Law § 240 (1) claim, noting that the glass that fell and injured the plaintiff in Narducci was actually a part of the pre-existing building structure. Thus, it was "not an integral part of the renovation/construction work undertaken by plaintiff that involved the hoisting or securing of objects" ( Boyle, 38 AD3d at 407).
Similarly, in the instant case, it is of no import that the beam did not fall during the course of being hoisted or secured, because the beam should have been secured, like the dolly in Outar and the rods in Boyle. In addition, the cutting and replacing of the deteriorated beam was an integral part of the renovation project in progress.
In a similar case, Cammon v City of New York ( 21 AD3d 196, 201 [1st Dept 2005]), during a timber removal project, the work barge that the plaintiff was working on was rocked by a large wave created by a passing tugboat. The plaintiff was injured when he was struck from above by an airborne piece of timber he had been cutting. In that case, the court held Labor Law § 240 (1) applicable, because the timber was a load that required securing while being worked on by plaintiff, and the sling that was in use at the time of the accident, a single chain wrapped around the timber, proved inadequate to provide plaintiff with proper protection.
In addition, that the accident was precipitated by an unexpected wave did not change the result, as, regardless of the "precise manner in which the accident occurred, a defendant is not absolved from liability where . . . plaintiff's injures are at least partially attributable to the defendant's failure to provide protection as mandated by the statute" ( id. at 201; Laquidara v HRH Constr. Corp., 283 AD2d 169, 169-170 [1st Dept 2001]).
Defendants also argue that, as there is testimony in the record to the effect that plaintiff "let go" of the beam when the wave hit his float stage, plaintiff is the sole proximate cause of his injuries. Thus, defendants maintain that they are not liable for plaintiff's injuries caused by the falling beam under Labor Law § 240 (1).
Where plaintiff's own actions are the sole proximate cause of the accident, there can be no liability under Labor Law § 240 (1) ( Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [plaintiff's own negligent actions in choosing a ladder he knew was too short for the work to be accomplished, and then standing on the ladder's top cap in order to reach the work, were, as a matter of law, the sole proximate cause of his injuries]; Montgomery v Federal Express Corp., 4 NY3d 805, 806; Cahill v Triborough Bridge and Tunnel Auth., 4 NY3d 35, 39). "Instead, the owner or contractor must breach the statutory duty under section 240 (1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker's injuries" ( Robinson, 6 NY3d at 553-554).
However, where "the owner or contractor fails to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff's injury, the negligence, if any, of the injured worker is of no consequence [internal quotation marks and citations omitted]" ( Tavarez v Weissman, 297 AD2d 245, 247 [1st Dept 2002]).
Here, plaintiff's deposition testimony is unclear as to whether plaintiff let go of the beam or let go of the chain saw that he was utilizing to cut the beam at the time the wave struck. In any event, defendants' failure to properly secure the beam is at least " a cause of plaintiff's injury" ( id.). Thus, any purported negligence on the part of the plaintiff in allegedly letting go of the beam is of no consequence. Accordingly, defendants are not entitled to summary judgment dismissing plaintiff's Labor Law § 240 (1) claim as it relates to plaintiff's injuries to his shoulder caused by the falling timber.
B. PLAINTIFF'S INJURIES DUE TO BEING CRUSHED AGAINST THE UNDERSIDE OF THE PIER
Initially, it should be noted that the float stage that plaintiff was working on at the time of his alleged accident is the sort of safety device contemplated by Labor Law § 240 (1) ( see Dooley v Peerless Importers, ___ AD3d ___, 2007 WL 1633351 [2nd Dept, June 5, 2007] [plaintiff, while working from a floating stage, was subject to an elevation-related risk which necessitated a sufficient number of tie lines and/or guardrails in order to prevent his accident]).
It is well settled that the extraordinary protections of Labor Law § 240 (1) apply only to a narrow class of dangers which are related to the effects of gravity and where protective devices are called for ( Melber v 6333 Main St., 91 NY2d 759, 762; Rocovich, 78 NY2d at 514-515). The contemplated hazards encompassed by Labor Law § 240 (1) "are limited to such gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" ( Ross, 81 NY2d at 501; Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491 [Labor Law § 240 (1) enacted for worker laboring under "unique gravity-related hazards"]). Labor Law § 240 (1) was not designed to encompass the "usual and ordinary dangers of a construction site" ( Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d 841, 843-844 [plaintiff injured when a steel beam being lowered without hoists from a position seven inches aove plaintiff's head, slipped and fell on plaintiff's knee]; Misseritti, 86 NY2d at 489 [unbraced concrete fire wall collapsed at ground level onto plaintiff]; Jacome v State of New York, 266 AD2d 345, 347 [2nd Dept 1999] [where plainiff's injury resulted when a steel plate slid sideways, court held that plaintiff's injury was not an elevation-related risk, but resulted from the type of ordinary and usual peril a worker is commonly exposed to at a construction site]; Thompson v Ludovico, 246 AD2d 642, 643 [2nd Dept 1998]).
Here, with the exception of plaintiff's shoulder injuries, plaintiff's injuries were primarily caused when the wave carried his floating stage upwards, crushing him between the floating stage and the bottom of the pier. As the wave caused the floating stage to move upward, rather than causing it to fall downward, it cannot be said that the hazard that proximately caused plaintiff's injuries was gravity-related, as contemplated by Labor Law. Instead, plaintiff's injuries were of the type that would be considered a result of the usual and ordinary dangers of his job.
A violation of Labor Law § 240 (1) cannot "establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury'" ( Rocovich, 78 NY2d at 513, quoting De Haen v Rockwood Sprinkler Co. of Massachusetts, 258 NY 350, 353).
Accordingly, defendants are entitled to summary judgment dismissing plaintiff's Labor Law § 240 (1) claim as it relates to plaintiff's injuries caused as a result of being crushed against the underside of the pier.
II.
Labor Law § 241 (6) provides, in pertinent part, as follows:
"All contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
* * *
(6)All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped . . . as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. . . ."
Labor Law § 241 (6) imposes a nondelegable duty on owners, contractors and their agents to provide reasonable and adequate protection and safety to persons employed in construction, excavation and demolition work ( see Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d at 501-502). However, Labor Law § 241 (6) is not self-executing, and in order to show a violation of this statute, and withstand a defendant's motion for summary judgment, it must be shown that the defendant violated a specific, applicable, implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety ( id.).
Although plaintiff alleges multiple violations of the Industrial Code in his bill of particulars, with the exception of Industrial Code 12 NYCRR 23-3.3 (c), plaintiff failed to address these Industrial Code violations in his moving papers. Thus, this Court deems these claims as abandoned, and defendants are entitled to summary judgment on those alleged Industrial Code violations ( see Genovese v Gambino, 309 AD2d 832, 833 [2nd Dept 2003] [where plaintiff did not oppose that branch of defendant's summary judgment motion dismissing the wrongful termination cause of action, his claim that he was wrongfully terminated was deemed abandoned]).
Industrial Code 12 NYCRR 23-3.3 (c) provides:
Inspection. During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.
Initially, it should be noted that Industrial Code 12 NYCRR 3.3 (c) states a specific standard of conduct as opposed to a general common-law standard of care ( see Perillo v Lehigh Constr. Group, Inc., 17 AD3d 1136, 1138 [4th Dept 2005]).
Here, plaintiff puts forth the affidavit of Sokoloff in support of his contention that defendants violated Labor Law § 241 (6) predicated on Industrial Code 12 NYCRR 3.3 (c). Sokoloff maintained that, if continual inspections of the beam had taken place, plaintiff would not have been injured by the falling beam, as the deteriorated and rotten condition of the beam would have been detected and then properly supported.
However, the evidence does not show that the beam fell because of its allegedly deteriorated condition and that such deterioration would have been discovered had an inspection occurred, as opposed to falling because plaintiff was in the process of cutting through the beam when a wave crashed into it. Plaintiff has not shown that securing the beam (following an inspection) would have prevented the beam from becoming unsecured once plaintiff was in the process of cutting into the beam. Thus, plaintiff does not raise a triable issue of fact as to whether defendants' alleged failure to make inspections was a proximate cause of plaintiff's injuries caused by the falling beam.
Accordingly, defendants are entitled to summary judgment dismissing plaintiff's Labor Law § 241 (6) claim as against them.
III.
Labor Law § 200 is a "codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work' [citation omitted]" ( Cruz v Toscano, 269 AD2d 122, 122 [1st Dept 2000]; see also Russin v Louis N. Picciano Son, 54 NY2d 311, 317). Labor Law § 200 (1) states, in pertinent part, as follows:
"1. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons."
Although the parties in this case discuss the issue of supervision, or lack thereof, on the part of defendants, that standard applies in Labor Law § 200 cases which involve injuries resulting from the means and methods of the work. However, in this case, plaintiff's injuries arose from an unsafe condition present at the construction site. In such a case, the proponent of a Labor Law § 200 claim must demonstrate that the defendant created or had actual or constructive notice of the allegedly unsafe condition that caused the accident ( Murphy v Columbia University, 4 AD3d 200, 202 [1st Dept 2004] [to support finding of a Labor Law § 200 violation, it was not necessary to prove general contractor's supervision and control over plaintiff because the injury arose from the condition of the work place created by or known to contractor, rather than the method of plaintiff's work]).
The unsafe condition that caused plaintiff's accident arose when the unsecured floating stage that plaintiff was standing on, as well as the unsecured timber that plaintiff was cutting, were subjected to the force of the waves. Defendants had notice of the ongoing presence of waves in the area of plaintiff's accident, as indicated by the fact that the workers had to wait for the tides to retreat before being able to perform work on the underside of the pier, as well as the inherent and obvious nature of the Hudson River as an estuary, whose waters are subject to both tidal action and river traffic. Accordingly, defendants are not entitled to summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claims as against them.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the part of Chelsea Piers, L.P. and Chelsea Piers Management Inc.'s motion for summary judgment dismissing plaintiff Patrick Keane's common-law negligence and Labor Law § 200 claims as against them is denied; and it is further
ORDERED that the part of defendants' motion, pursuant to CPLR 3212, for summary judgment dismissing that portion of plaintiff's Labor Law § 240 (1) claim, as in regard to the shoulder injuries sustained by plaintiff as a result of the falling beam, is denied; and it is further ORDERED that the part of defendants' motion, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim, as well as that part of plaintiff's Labor Law § 240 (1) claim, as in regard to plaintiff's injuries sustained when he was crushed to the underside of the pier, are granted; and these portions of the complaint are dismissed; and it is further
ORDERED that the remainder of the action shall continue.